Madhya Pradesh High Court

Sunil vs The State Of Madhya Pradesh on 27 September, 2021

Author: Shailendra Shukla

                                        1
     THE HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

SINGLE BENCH :HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA, J.


                            M.CR.C. No.41723/2021

                            Sunil S/o Kailash Kothari
                                       Vs.
                        State of Madhya Pradesh through
                    Police Station Mahila Thana, District Indore


Present :-
          Shri S. K. Vyas, learned Senior Counsel with Shri L. S. Chandiramani,
learned counsel for the applicant.
          Shri P. M. Bhargava, learned AAG with Shri Hemant Sharma, learned
Public Prosecutor for the non-applicant - State.
                                     ORDER

(Passed at Indore on this 27th day of September, 2021)

This order seeks to dispose of the petition filed under Section 482 of

Cr.P.C. seeking a direction to the Investigating Officer to take into account the

documents filed by the applicant while conducting the investigation.

2. The applicant is an accused in Crime No.71/2021 registered at Police

Station Mahila Thana, District Indore and the accusation against him is that he

had committed rape upon the prosecutrix and had threatened her.

3. As per FIR, the incident had occurred on 13.12.2004 and the report

was lodged in the year 17.03.2021. The prosecutrix had levelled allegations that

in the year 2004, she had received a call allegedly from accused who stated that

his name was Sanjay Kothari and told that the call was made by mistake.

However, the applicant started calling the prosecutrix and he offered her a job in

Ambika Solvex Pvt. Ltd., Indore. The prosecutrix when arrived on 13.12.2004,

he took her to the office of Ambika Solvex Pvt. Ltd. situated at Sapna Sangeeta

area at Indore and locked the door and committed rape upon her. The prosecutrix

shocked at the incident somehow arrived at her hometown at Neemuch and due

to fear and stigma, she could not lodge the report. However, she could not forget

the incident and made complaint in the year 2007 against Sanjay Kothari, who

could not be traced and on 02.04.2019 while browsing Facebook, she came

across the applicant, who is actually named Sunil Kothari, who looked like the

person Sanjay Kothari, who had committed rape upon her in the year 2004 and

this led to lodging of complaint.

4. The applicant has stated that he is being falsely implicated and that

prosecutrix wanted to blackmail him and extort money from him, which led the

applicant to lodge complaint against her (Annexure-A/1) leading to issuance of

notice against the prosecutrix. The prosecutrix filed a writ petition seeking

quashment of notice, which was rejected. In the reply to the show cause notice,

the prosecutrix had barely stated that applicant had committed inappropriate act

against her. Subsequently, the prosecutrix recorded statements seeking to

withdraw the allegations against the applicant (Annexure-A/6). On the basis of

this, an enquiry report was submitted by the police (Annexure-A/7). The

applicant also filed a private complaint against the prosecutrix (Annexure-A/11).

The applicant, ultimately had been granted anticipatory bail (Annexure-A/13).

The applicant desires that in the investigation which is going on, his defense be

considered by the Investigating Officer and it is prayed that Annexures-A/1 to

A/13 be considered by the Investigating Officer while conducting the

investigation as the applicant has been falsely implicated in a wrong case by the

prosecutrix.

5. Learned Senior Counsel for the applicant, in support has cited order

dated 10.11.2020 passed by the Co-ordinate Bench of Principal Seat at

Jabalpur in MCRC No.16453/2019 (Udit Singh vs. State of Madhya Pradesh

and another). As per facts of the aforesaid case, the applicant was being

prosecuted for causing dowry death of his wife. The case of the applicant was

that his wife was having promiscuous relations with other person and

objectionable photographs of his wife with other person were received by the

applicant and then, applicant confronted his wife with the aforesaid photographs

leading to committal of suicide by the wife. It was prayed by the applicant that

the material, which supported his case ought to be considered by the

Investigating Officer. The Co-ordinate Bench allowed the prayer. The relevant

extracts of the aforesaid order are as follows :-

19. Heard the learned counsel for the parties and perused the documents filed along with the petition. It would be relevant to mention here that the documents put forth by the Petitioner, are undisputed by both the State and the Respondent No.2. The genuineness of these documents or the photographs in question have not been questioned by the Respondents. Only a half- hearted plea has been taken by the Respondents that these documents can only be looked into at this stage of the trial.

20. The manner in which the police conducted the investigation initially was one sided. They had refused to hear the version of the Petitioner or even examine his documents. It was only after the intervention of this Court during the hearing of the anticipatory bail application, that the police reluctantly accepted the documents and photographs put forth by the Petitioner.

21. In Ankush Maruti Shinde The Supreme Court expressed its displeasure against the police for the manner in which it had investigated an offence in which several people were murdered and a woman raped in which, the accused persons, who were members of a nomadic tribe were falsely implicated while, the actual perpetrators of the crime who were identified by the witness's from the register at the police station, where never proceeded or investigated into. Underscoring the importance of a fair investigation, The Supreme Court held "It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book"1. In the same judgment, The Supreme Court, relying upon an earlier judgment passed in V.K. Sasikala Vs. State - (2012) 9 SCC 771, Highlighted the importance of the police in examining the documents that maybe in support of the accused and held in the following words "As observed by this Court in V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself".2 1 Ankush Maruti Shinde Vs. State of Maharashtra - (2019) 15 SCC 470, paragraph 10 at page 504 2 Ankush Maruti Shinde Vs. State of Maharashtra - (2019) 15 SCC 470, paragraph

10.3 at page 505

22. In Babubhai Vs. State of Gujarat, The Supreme Court examined a case arising from a fight between two groups in which three people died. The police are alleged to have examined the case only from the standpoint of one, completely ignoring the defence of the other. Emphasising on the importance of a fair investigation, the Supreme Court held "The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious

so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )". Further, in the same judgement Supreme Court held "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation".4 3 Babubhai Vs. State of Gujarat - (2010) 12 SCC 254, paragraph 32 at page 269 4 Babubhai Vs. State of Gujarat - (2010) 12 SCC 254, paragraph 45 at page 272

23. Thus, fair investigation by the police is an imperative facet inhering in Article 21. It is not an option but a constitutional mandate on the police that when it investigates, it must be done, not from the standpoint of the prosecution alone, but also from the point of view of the accused. It has to consider the defence put forth by the accused which if investigated fairly, may exonerate him. The purpose of investigation is not to secure a conviction of the accused but to unearth the truth relating to the commission of an offence. A partisan investigation is a defective investigation which puts a question mark on the sanctity of the proceedings against the accused. If after taking the defence of the accused into consideration the police is of the view that the accused is not the person who committed the offence, in such a situation he is to be exonerated and the case against him, closed. In the present case, the investigation was initially biased and one-sided. There was even reluctance on the part of the police to accept documents from the accused. Even after the police had received the prurient photographs of the deceased, it never carried out any investigation to examine the motive of the deceased to commit suicide and whether the reason put forth by the Petitioner was plausible. The police have merely taken the material given by the Petitioner and made the same a part of the chargesheet without conducting any investigation into the defence of the Petitioner. The police have merely recorded

the statement of the immediate relations of the deceased and filed the chargesheet against the Petitioner. No investigation was conducted to a certain the veracity of the allegations against the Petitioner.

6. Learned Senior Counsel for the applicant, basing his arguments on the

aforesaid order has stated that the role of the Investigating Officer is to arrive at

the truth, which can be done only when the case is examined from all angles

which also includes documents/evidence which would support the applicant's

side of story.

7. Learned AAG for the State was also heard, who has stated that the

Investigating Officer may be directed to consider the documents but there would

be no requirement for the Investigating Officer to give a finding on the propriety

or otherwise of the documents of accused. He has stated that there is no law

requiring the Investigating Officer to prove the version of the accused.

8. Considered.

9. In view of the Apex Court judgements, as contained in the cited order